Law  Lib. 
T 

W5554L 
1878 

a 


T  T  '  ':TT  T' 


1076  " 


Francis  V/harton     ^""s^o. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


''■QOL  0.V  LAVir 


^ti 


•j!|O3'u04>i304s 

•suisoaaaaoTAvo 
aaaNiaxaiHdwvd 

iNnowoHir 


LI.\BILi:'Y  OP  UAS^m  TO  S-RVMT,    1876. 


/ 


LIABILITY 


or 


MASTER  TO  SERVANT. 


By  FRANCIS  WHARTON,  LL.  D. 


REPRINTED  FROM  THE  '' SOUTHERN  LAW  REVIEW.'" 


ST.  LOUIS: 
G.  I.  JONES  AND  COMPANY. 

18  78. 


1^ 

^  MASTER'S  LIABILITY  TO  SERVANT.'' 


The  law  of  master  and  servant  has  been  recently  the  sub- 
ject of  careful  and  protracted  examination  by  a  committee 
of  the  English  House  of  Commons.  A  master,  such  is  the 
way  in  which  the  law  is  stated,  is  not  liable  to  his  servants  for 
such  injuries  received  by  the  latter  as  are  incidental  to  the 
service;  and  the  reason  ordinarily  advanced  for  this  conclu- 
sion is  that,  as  servants  contract  with  their  master  to  take 
the  risks  of  their  service,  they  cannot  recover  from  their 
master  damages  which  they  have  virtually  agreed  to  release. 
It  is  not  surprising  that  the  public  mind  of  England,  whose 
population  is  largely  made  up  of  operatives  in  mills  and 
other  enterprises  in  which  defective  machinery  is  productive 
of  terrible  risks,  should  have  been  agitated  by  the  reason 
for  the  proposition,  if  not  by  the  proposition  itself.  Of  the 
myriads  affected  by  this  proposition  (exempting  masters,  as 
it  on  its  face  does,  from  a  large  portion  of  their  liabili- 
ties), probably  not  more  than  one  out  of  a  thousand  has 
any  idea  of  entering  into  any  contract  of  the  character 
imputed.  Over  the  "  fellow-servant  "  who  inflicts  the  injury 
the  injured  servant  has  in  very  few  cases  such  a  power  of 
supervision  as  should  bring  with  it  responsibility.  Hence  it 
was  that  political  economists  and  politicians,  as  well  as  law- 
yers, heard  with  much  satisfaction  that  a  committee  was 
appointed  by  the  House  of  Commons,  on  Mr.  Lowe's  motion, 
Mr.  Lowe  himself  being  chairman,  to  report  whether  the  con- 
dition of  the  law  in  this  relation  required  any  legislation. 

The  result  is  not  very  satisfactory.  From  Mr.  Lowe, 
indeed,  we  have  a  very  able  paper,  deploring  the  law  as  it 
now  stands.     "  The  law,"  so  he  says,  "  is  that  the  plate-layer 

■^  The  writer  reserves  the  right  of  republishing  extracts  from  tlie  within. 


4  MASTER  S    LIABILITY    TO    SERVANT. 

on  a  railway  is  the  fellow-servant  of  the  station-master;  that 
the  servants  of  a  contractor  are  the  fellow-servants  of  the 
workmen  of  the  person  for  whom  the  contractor  is  at  work ; 
in  fact,  that  every  person  employed  by  a  master  is  the  fellow- 
servant  of  every  other  person."  That  this  relationship  of 
fellow-service  existed,  and  that  the  parties  entering  into  it, 
whatever  it  may  have  been,  agreed  that  they  should  not  sue 
the  master  for  their  common  negligence,  is  a  pure  fiction, 
as  Mr.  Lowe  argues,  of  the  judges.  "  The  contract,"  he 
says,  "  which  the  judges  have  assumed  to  be  entered  into  by 
every  operative,  involving,  as  it  does,  the  cession  of  most 
important  rights  without  any  consideration,  is  utterly  unknown 
to  the  person  to  be  bound  by  it,  and  was,  to  its  fullest  extent, 
unknown  to  the  judges  themselves."  The  conclusion  Mr. 
Lowe  styles  "an  extraordinary  stretch  of  judicial  legislation," 
which  is  to  be  regarded  "  with  ^he  utmost  jealousy  and 
dissatisfaction,"  altering  the  common  law,  "  not  in  any 
abstruse  or  remote  point,  but  in  a  matter  which  most  nearly 
concerns  the  interests  of  hundreds  of  thousands  of  her 
majesty's  subjects."  From  these  strong  expressions,  how- 
ever, a  majority  of  the  committee  dissent,  citing  with  appar- 
ent approval  Chief  Baron  Pollock's  statement  that  the  rule 
in  Priestly  v.  Fowler  introduced  no  new  law,  and  maintaining 
that,  when  the  offending  servant  is  really  a  fellow-servant  of 
the  person  injured,  then  the  master  should  not  be  held  lia- 
ble. The  following  important  qualification  of  the  law,  how- 
ever, was  recommended  by  the  committee  as  a  body : 

"  12.  Your  committee  are  of  opinion  that  in  cases  such 
as  these — that  is,  where  the  actual  employers  cannot  person- 
ally discharge  the  duties  of  masters,  or  where  they  deliber- 
ately abdicate  their  functions  and  delegate  them  to  agents — 
the  acts  or  defaults  of  the  agents,  who  thus  discharge  the 
duties  and  fulfil  the  functions  of  masters,  should  be  con- 
sidered as  the  personal  acts  or  defaults  of  the  principals  and 
employers,  and  should  impose  the  same  liability  on  such 
principals  and  employers  as  they  would  have  been  subject 
to  had  they  been  acting  personally  in  the  conduct  of  their 
business,  notwithstanding  that  such  agents  are  technically  ia 


MASTER  S    LIABILITY    TO    SERVANT.  5 

the  employment  of  the  principals.  The  fact  of  such  a  dele- 
gation of  authority  would  have  to  be  established  in  each 
■case,  but  this  would  not  be  a  matter  of  difficulty. 

"13.  Your  committee  are  further  of  opinion  that  the 
■doctrine  of  common  employment  has  been  carried  too  far, 
when  workmen  employed  by  a  contractor,  and  workmen 
•employed  by  a  person  or  company  who  has  employed  such 
contractor,  are  considered  as  being  in  the  same  common 
•employment.  Such  cases  do  not  come  within  the  limits  of 
the  policy  on  which  the  law  has  been  justified  in  paragraph 
•9  of  this  report." 

As  it  is  likely  that  the  report  of  which  we  have  given  an 
.abstract  will  lead  to  further  legislative  action  in  this  country 
■as  well  as  in  England,  the  following  observations  may  not  be 
now  out  of  place. 

The  case  of  an  operative,  or  other  servant,  who  is  injured 
"when  in  his  master's  employ,  and  who  sues  his  master  for 
redress,  may  assume  one  of  the  following  aspects : 

1.  The  injury  may  be  attributable  to  casus,  or  one  of  those 
•extraordinary  natural  incidents  for  which  human  agency  is 
not  responsible ; 

2.  Or,  it  may  be  attributable  exclusively  to  the  interposi- 
tion of  a  responsible  third  person ; 

3.  Or,  it  may  be  attributable  to  the  operative's  own 
negligence ; 

4.  Or,  it  may  be  attributable  to  the  master's  direct  per- 
sonal negligence; 

5.  Or,  it  may  be  attributable  to  his  negligence  in  the  use 
■of  defective  machinery; 

6.  Or,  it  may  be  attributable  to  the  negligence  of  fellow- 
servants  of  the  sufTerer. 

The  first  three  hypotheses  we  may  throw  out  of  con- 
sideration, as  they  preclude,  in  any  view,  recovery  against  the 
master.  The  fourth  would  sustain  a  recovery  irrespective  of 
all  distinctions  based  on  employment.  The  fifth  and  sixth 
may  be  considered  together,  for  the  reason  that  a  servant, 
so  far  as  concerns  his  relations  to  third  parties,  is  consid- 
ered as  part  of  a  machine  worked  by  the  master.     He  may. 


O  MASTER  S    LIABILITY    TO    SERVANT. 

SO  far  as  concerns  his  master,  be  a  very  wayward  or  perverse 
instrument.  He  may  do  injuries  to  third  persons  in  direct 
contradiction  of  his  master's  orders.  But,  so  far  as  he  does 
these  neghgent  injuries  within  the  orbit  of  his  employment^ 
his  master  is  as  much  hable  for  them  as  for  injuries  pro- 
duced by  defects  in  crank  or  wheel  attributable  to  the 
master's  personal  negligence. 

Three  reasons  are  offered  for  the  limitation  which  relieves 
the  master  from  liability  where  one  servant  sues  for  the  inju- 
ries received  through  the  negligence  of  a  fellow-servant  in 
the  common  employment. 

First,  it  is  said  that  a  servant,  entering  into  a  common 
employment  with  fellow-servants,  contracts  to  bear  injuries 
sustained  through  their  negligence  without  having  recourse 
to  the  employer.  But,  even  if  we  concede  that  every  employe 
is  a  person  capable  of  binding  himself  by  contract,  what  is 
the  form  that  the  supposed  contract  assumes?  Do  I,  as  a 
servant,  contract  to  bear  negligences  "gross"  as  well  as 
"  slight?  "  Even  as  to  this  important  distinction  the  authori- 
ties asserting  a  contract  do  not  agree ;  some  declaring  that 
such  contracts  do  not  avail  in  cases  of  "  gross  "  negligence, 
whatever  that  may  be.  Are  negligences  from  whose  conse- 
quences the  master  is  sheltered  simply  the  negligences  of 
servants  in  the  same  workshop  as  myself,  and  are  we  to  con- 
sider as  "fellow-servants,"  in  the  sense  before  us,  the  iO,ooo 
co-employes  of  one  of  our  colossal  corporations,  one  of 
whose  servants  I  may  happen  to  be  ?  Here  again  the 
authorities  give  no  decisive  instruction.  A  contract  is  an 
agreement  to  do  a  particular  thing.  But  here  there  is  no 
particular  thing  contracted  to  be  done.  We  may  therefore 
adopt,  in  this  connection,  the  following  striking  statements 
in  Mr.  Lowe's  report : 

"  Lord  Justice  Bramwell  remarks  '  that  the  expression 
which  has  been  used,  that  a  servant  contracts  that  he  will 
make  no  claim  against  the  master  for  injury  done  by  the 
negligence  of  a  fellow-servant,  is  an  unfortunate  one.  The 
obvious  difficulty  in  that  mode  of  expressing  it  is  that 
neither  master  nor  servant  ever  think  of  such  a  matter  when 


MASTER  S    LIABILITY   TO    SERVANT.  7 

they  enter  into  the  relation  of  master  and  servant.'  Justice 
Brett  says  (question  1919) :  'I  say  now  that  the  law  is  that 
you  cannot  properly  import  any  condition  or  stipulation  into 
a  contract,  except  one  which  in  the  minds  of  all  reasonable 
men  must  have  been  in  the  contemplation  and  intention  of 
both  parties  to  the  contract  at  the  time  it  was  made.'  " 

A  second  essential  constituent  of  such  a  contract  is  that 
it  should  have  been  entered  into  with  the  master,  who,  when 
sued,  undertakes  to  avail  himself  of  its  exemptions.  It  is 
■easy  to  conceive  of  a  contract  of  this  class.  If  I  go  to  A 
•and  A  employs  me  as  an  operative,  there  being  half  a  dozen 
workmen  under  his  control  in  the  shop  where  I  take  service, 
then  there  might  be  some  show  for  saying  that  I  make  a 
■contract  with  A  that  I  will  bear  the  risks  of  the  negligence 
of  B,  C,  and  D,  who  form  the  fellow-workmen  whom  I  at 
the  time  inspect.  But  there  are  certain  lines  of  cases  to 
which  this  exemption  is  applied  in  which  the  employer 
exempted  is  not  the  person  with  whom  the  operative  con- 
tracts. The  person  whom  I  sue  may  not  be  the  person  with 
whom  I  took  service ;  and  this  is  the  case  with  a  conspicu- 
ous English  authority,  Wigget  v.  Fox,  1 1  Ex.  832 ;  as  to 
which  Pollock,  B.,  in  1877  (Swainson  v.  Northeastern  Rail- 
way Company,  37  L.  T.  [n.  s.]  104),  remarked,  "there 
was  clearly  no  contract  between  the  man  who  was  killed 
and  the  contractors,  Fox  and  Henderson."  To  a  contract 
privity  is  essential ;  but  A,  an  employer,  is  not  privy  to  a  con- 
tract of  service  made  between  B  and  C,  and,  if  A  is  liable  to 
C,  it  is  not  on  such  a  contract.  Another  case  of  the  same 
•class  is  suggested  by  Pollock,  B.,  in  Swainson  v.  Northeast- 
ern Railway  Company.  "Take  the  case,"  he  says,  "of  two 
persons,  A  and  B,  agreeing  to  work  a  mine  together,  each  of 
them  agreeing  to  contribute  and  pay  the  wages  of  five  men. 
The  ten  men  go  down  to  work,  and,  in  the  course  of  their 
•common  occupation,  one  of  A's  five  men  is  injured  by  the 
negligence  of  one  of  B's  men.  Could  he  recover  against 
B?"  And  this  the  learned  judge  virtually  denies;  declar- 
ing at  the  same  time  that  A  and  B  are  not  in  common  "  the 
masters   of   both   sets    of  men,"     Here   we    have    another 


8  master's  liability  to  servant. 

instance  of  an  operative  precluded  from  recovering  from  an. 
employer  with  whom  he  has  made  no  contract  of  service." 

In  Woodley  v.  Railway  Company,  36  L.  T.  (n.  s.)  419,  which, 
was  determined  by  the  English  high  court  of  appeal  in  Feb- 
ruary, 1877,  the  plaintiff  was  employed  by  a  contractor  en- 
gaged by  the  defendants  in  excavating  a  tunnel.  Trains,  run 
by  the  servants  of  the  defendants,  were  constantly  passing  the 
spot,  which  was  on  a  curve  where  there  was  no  light.  The 
plaintiff  was  injured  by  a  train  which  approached  rapidly 
without  any  notice  of  its  approach,  although  guards  had 
previously  been  stationed  on  the  road  for  the  purpose  of" 
giving  notice.  The  jury  found  that  the  omission  of  this  pre- 
caution was  negligence  on  part  of  the  defendants.  The  judge 
trying  the  case  was  not  dissatisfied  with  the  verdict,  and 
judgment  was  entered  upon  it  by  the  exchequer  division. 
This  judgment  was  reversed  in  the  high  court  of  appeal, 
though  under  circumstances  which  divest  the  judgment  of 
authoritative  weight.  By  Cockburn,  C.  J.,  it  was  conceded 
that  negligence,  under  the  verdict,  was  imputable  to  the 
defendants,  but  that  the  plaintiff,  by  continuing  in  the 
employment  to  which  he  knew  this  specific  risk  was  attach- 
able, could  not  recover.  His  opinion,  however,  starts  with 
the  remarkable  assumption  that  the  plaintiff  was  the  servant 
of  the  defendants,  though  there  is  a  cautious  avoidance  of 
any  intimation  that  this  was  a  contract  of  service  in  which 
the  plaintiff  undertook  to  bear  risks  in  question :  "7/","  so  reads 
the  judgment  of  Cockburn,  C.  J.,  ''  the  plaintiff,  in  doing  the- 
tvork  on  the  raikvay,  is  to  be  looked  upon  as  the  servant  of  the 
company,  the  decision  of  the  exchequer  division  in  his  favor 
cannot,  as  it  seems  to  me,  be  upheld.  It  could  not  be  said 
that  any  deception  was  practised  on  the  plaintiff  as  to  the 
degree  of  danger  to  which  he  would  be  exposed.  He  must 
be  taken  to  have  been  aware  of  tiie  nature  and  character  of 
the  work,  and  its  attendant  risk,  when  he  entered  into  the 
employ  of  the  contractor  for  the  job  in  question ;  or,  at  all 
events,  he  must  have  become  fully  aware  of  it  as  soon  as  he 
began  to  work.  If  he  had  been  misled  in  supposing  that 
precautionary  measures,  such  as  the  dangerous  nature  of  the 


MASTER  S    LIABILITY    TO    SERVANT.  9 

service  rendered  reasonably  necessary,  would  be  taken,  he 
had  a  right  to  throw  up  his  engagement,  and  to  decline  to 
go  on  with  the  work  ;  and  such  would  have  been  his  proper 
course.  But,  with  a  full  knowledge  of  the  danger,  he  con- 
tinued in  the  employment,  and  had  been  working  in  the  tun- 
nel for  a  fortnight  when  the  accident  happened.  A  man  who 
enters  upon  a  necessarily  dangerous  employment  with  his 
eyes  open,  takes  it  with  its  accompanying  risks.  On  the 
other  hand,  if  the  danger  is  concealed  from  him,  and  an 
accident  happens  before  he  becomes  aware  of  it ;  or,  if  he  is 
led  to  expect,  or  may  reasonably  expect,  that  proper  precau- 
tions will  be  adopted  by  the  employer  to  prevent  or  lessen 
the  danger,  and,  from  the  want  of  such  precautions,  an 
accident  happens  to  him  before  he  has  become  aware  of 
their  absence,  he  may  hold  the  employer  liable.  If  he 
becomes  aware  of  the  danger  which  has  been  concealed 
from  him,  and  which  he  had  not  the  means  of  becoming 
acquainted  with  before  he  entered  on  the  employment,  or  of 
the  necessary  means  to  prevent  mischief,  his  proper  course 
is  to  quit  the  employment.  If  he  continues  in  it,  he  is  in 
the  same  position  as  though  he  had  accepted  it  with  a  full 
knowledge  of  its  danger  in  the  first  instance.  He  must  be 
taken  to  waive  his  right  to  call  upon  the  employer  to  do 
what  is  necessary  for  his  protection,  or,  in  the  alternative,  to 
quit  the  service.  If  he  continues  to  take  the  benefit  of  the 
employment,  he  must  take  it  subject  to  its  disadvantages. 
He  cannot  put  on  the  employer  terms  to  which  he  has  now 
full  notice  that  the  employer  never  intended  to  bind  himself. 
It  is  competent  to  an  employer,  at  least  so  far  as  civil  conse- 
quences are  concerned,  to  invite  persons  to  work  for  liim 
under  circumstances  of  danger  caused  or  aggravated  by 
want  of  due  precautions  on  the  part  of  the  employer.  If  a 
man  chooses  to  accept  the  employment,  or  to  continue  in  it, 
with  a  knowledge  of  the  danger,  he  must  abide  the  conse- 
quences, so  far  as  any  claim  to  compensation  against  the 
employer  is  concerned.  Morally  speaking,  those  who 
employ  men  on  dangerous  work,  without  doing  all  in  their 
power  to  obviate  the  danger,  are  highly  reprehensible,  as  I 


lO  MASTER  S    LIABILITY    TO    SERVANT. 

certainly  think  the  company  were  in  the  present  instance. 
The  workman,  who  depends  on  his  employment  for  the  bread 
of  himself  and  his  family,  is  thus  tempted  to  incur  risks  to 
which,  as  a  matter  of  humanity,  he  ought  not  to  be  exposed. 
But,  looking  at  the  matter  in  a  legal  point  of  view,  if  a  man, 
for  the  sake  of  the  employment,  takes  it,  or  continues  in  it, 
with  a  knowledge  of  its  risks,  he  must  trust  to  himself  to  keep 
clear  of  injury.  But  it  may  be  said  the  plaintiff  was  not  in 
the  service  of  the  defendants  at  all ;  he  was  on  their  prem- 
ises, not  only  in  lawful  business,  but,  it  may  be  said,  by  their 
invitation,  as  he  was  v/orking  under  a  contractor  employed 
by  them  to  do  the  work  in  question;  he  sustained  the  injury 
complained  of  through  what  the  jury  have  found  to  have  been 
negligence  on  the  part  of  the  company ;  he  is,  therefore,  enti- 
tled to  damages.  But  this  reasoning  appears  to  me  to  be 
fallacious.  That  which  would  be  negligence  in  a  company, 
with  reference  to  the  state  of  their  premises  or  the  manner 
of  conducting  their  business,  so  as  to  give  a  right  to  com- 
pensation for  an  injury  resulting  therefrom  to  a  stranger 
lawfully  resorting  to  their  premises  in  ignorance  of  the  exist- 
ence of  the  danger,  will  give  no  such  right  to  one  who,  being 
aware  of  the  danger,  voluntarily  encounters  it,  and  fails  to 
take  the  extra  care  necessary  for  avoiding  it.  The  same 
observation  arises  as  before.  With  full  knowledge  of  the 
manner  in  which  the  traffic  was  carried  on,  and  of  the  dan- 
ger attendant  on  it,  the  plaintiff  thought  proper  to  remain  in 
the  employment.  No  doubt  he  thought  that,  by  the  exer- 
cise of  extra  vigilance  and  care  on  his  part,  the  danger 
might  be  avoided  ;  by  a  want  of  particular  care  in  deposit- 
ing one  of  his  tools  he  exposed  himself  to  the  danger,  and, 
unfortunately,  suffered  from  it.  He  cannot,  I  think,  make  the 
company  liable  for  injury  arising  from  danger  to  which  he 
voluntarily  exposed  himself  The  contractor,  the  immediate 
employer  of  the  plaintiff,  undertook  to  execute  work  which 
he  knew  would  be  attended  with  danger  in  the  service  under 
which  it  was  to  be  executed.  The  plaintiff,  as  his  servant, 
did  the  same.  They  are  in  a  very  different  position  from 
that  in  which  they  would  have  stood  had  they  been  at  work 


MASTERS    LIABILITY    TO    SERVANT.  II 

■on  the  defendants'  premises  in  ignorance  of  the  danger.  The 
conckision,  therefore,  at  which  I  have  arrived — I  must  say, 
with  much  regret,  as  I  think  the  conduct  of  the  defendants 
open  to  great  reprehension — is  that  the  judgment  of  the 
exchequer  division  is  wrong  and  must  be  reversed." 

Mellor,  J.,  voted  for  reversal,  giving,  first,  the  reason  that, 
notwithstanding  the  verdict  of  the  jury,  there  was  no  evi- 
dence fixing  neghgence  on  the  defendants ;  but  sHding  from 
this  to  the  same  assumption  as  was  made  by  Cockburn,  C.  J., 
that  the  plaintiff  was  the  defendants'  servant;  and  that  in  the 
particular  case,  if  the  plaintiff  saw  any  peculiar  danger  in  his 
position,  "  he  ought  either  to  have  stipulated  with  his  master, 
or  the  company''  (but,  if  the  company  was  not  his  master,  how 
could  he  be  supposed  to  have  a  contract  with  the  company  ?), 
"to  provide  some  additional  means  or  precautions  against 
such  possible  danger."  *  *  *  With  Mellor,  J.,  Grove, 
J.,  agreed.  On  the  other  hand,  Mellish,  L.  J.,  and  Baggalay, 
J.,  dissented,  on  the  ground  (i)  that  the  plaintiff  had  made 
no  contract  of  service  with  the  defendant;  and  (2)  that,  the 
plaintiff  being  on  the  defendants'  premises  with  the  latter's 
invitation,  "there  was  a  dut}^  imposed  by  law  on  the  com- 
pany either  to  avert  the  danger,  or  to  give  the  plaintiff 
reasonable  notice  of  it  so  that  he  might  protect  himself." 
The  idea  of  a  contract  in  such  a  case  as  the  present  was 
emphatically  repelled.  "  The  servant  of  the  contractor," 
.said  Mellish,  L.  J.,  "  enters  into  no  such  contract  with  the 
railway  company  at  all,  and  his  contract  with  his  own 
master  is  7'es  inter  alias  acta,  and,  in  my  opinion,  is  altogether 
immaterial."  "The  plaintiff,"  added  Baggalay,  J.  A.,  "can- 
not be  regarded  as  the  servant  of  the  company ;  he  was  the 
servant  of  the  contractor."  We  have,  therefore,  on  survey- 
ing the  entire  history  of  this  remarkable  case,  the  exchequer 
division  denying  the  relationship  of  master  and  servant  be- 
tween the  plaintiff  and  the  defendants,  and,  in  the  court  of 
appeals,  this  denial  maintained  by  Mellish,  L.  J.,  and  Bagga- 
lay, J.  A.  On  the  other  hand,  while  Mellor,  J.,  and  Grove,  I., 
assert  the  relationship  (if  Grove,  J.,  is  to  be  viewed  as  assent- 
ing to  this  part  of  the  opinion  of  Mellor,  J.),  it  is  propounded 


12  MASTERS    LIABILITY    TO    SERVANT. 

only  hypothctically  by  Cockbuni,  C.  J.  And  the  whole: 
argument  of  Cockburn,  C.  J.,  as  given  above,  goes  to  show 
that  he  rests  his  conclusion,  not  upon  any  supposed  contract 
between  the  plaintiff  and  the  defendants,  but  upon  the  posi- 
tion that  he  who  intelligently  and  voluntarily  undertakes  a. 
risk  cannot  recover  from  others  damages  he  sustains  fronx 
the  risk  he  undertakes.  In  fact,  under  the  state  of  facts  just 
developed,  it  is  absurd  to  speak  of  the  relationship  of  master 
and  of  servant  existing  between  the  plaintiff  and  the  defend- 
ants. The  defendants  would  not  have  been  liable  to  third 
parties  for  the  plaintiff's  negligence,  for  it  would  have  beea 
promptly  ruled  that  in  such  case  the  offending  party  was  the 
servant  of  an  independent  contractor,  and  that  an  employer  is 
not  liable  for  the  negligences  of  a  contractor's  servants.  And, 
if  a  suit  had  been  brought  by  the  plaintiff  against  the  defend- 
ants for  wages,  a  nonsuit  would  have  been  summarily  entered,, 
as  no  contract  between  the  plaintiff  and  the  defendants  could 
have  been  proved.  The  plaintiff,  therefore,  in  Woodley  v. 
Railway  Company,  ought  not  to  have  been  precluded  from 
recovering  from  the  defendants  on  the  ground  that  he  was 
the  defendants'  servant.  If  the  judgment  of  the  court  of 
appeals  was  right,  it  was  right,  not  because  the  plaintiff  was 
the  defendants'  servant,  or  because  he  made  any  contract  of 
any  kind  with  the  defendants,  but  because,  on  the  grounds 
to  be  hereafter  stated,  he  was  not  entitled  to  recover  dam- 
ages for  injuries  to  which  he  intelligently  and  voluntarily 
exposed  himself. 

Swainson  v.  Northeastern  Railway  Company,  which  has 
just  been  incidentally  noticed,  and  which  was  decided  a  iew 
months  after  Woodley  v.  Railway  Company,  is  a  case  of  so 
much  interest  that  it  deserves  the  minute  examination  given 
to  it  by  an  English  contemporary.  (London  Lazu  Times,  June 
23,  I  Syy.)  "  The  Great  Northern  Railway  Company,"  so  is  the 
case  condensed  in  the  Lazu  TIdics,  "  and  the  Northeastern  Rail- 
way Company  have  both  a  station  at  Wellington  street,  Leeds, 
and  the  two  stations  abut  upon  each  other.  There  are  two 
lines  of  rails  belonging  to  each  company,  and  ingress  and 
egress  from  the  stations  is  regulated  by  signals  and  points. 


MASTERS    LIABILITY    TO    SERVANT.  I3 

which  are  worked  by  signal-men,  whose  duty  it  is  to  regulate 
the  traffic  of  both  stations  in  common.  The  plaintiff's  hus- 
band was  one  of  these  signal-men,  and  he  had  held  his  appoint- 
ment four  years.  He  was  engaged  and  paid  by  the  Great 
Northern  Company,  and  he  wore  their  uniform,  and  he  was 
not  told  at  the  time  of  his  being  engaged  that  he  was  to  be 
a  joint  servant.  He  was,  however,  as  between  the  two  com- 
panies, one  of  what  was  called  the  'joint  station  staff,'  all 
of  whom  were  engaged  and  paid  by  the  Great  Northern 
Company,  the  cost  of  the  salaries  of  the  staff  being  treated 
by  the  companies  as  a  joint  charge,  and  being  borne  equally 
between  them ;  and  when  he  received  his  wages  at  the  end 
of  each  week  he  signed  a  pay-sheet  which  was  headed 
'Great  Northern  Railway,  Traffic  Department,  Pay-bill, 
Joint  Station  Staff.'  It  was,  moreover,  his  duty  to  attend 
to  the  Northeastern  as  well  as  to  the  Great  Northern  trains, 
as  to  points  and  signals,  whenever  any  engines  or  trucks  had 
to  be  transferred  from  the  rails  of  one  company  to  those  of 
the  other;  and  he  was  engaged  in  the  discharge  of  that  duty 
when  he  was  killed  by  the  negligence  of  an  engine-driver  in 
the  service  of  the  defendants,  under  the  following  circum- 
stances: On  the  7th  of  May,  1875,  Swainson  was  standing 
on  the  six-foot  space  between  the  Great  Northern  and  the 
Northeastern  departure  lines,  when  a  Northeastern  engine 
came  towards  the  station  on  the  Great  Northern  arrival  rails, 
with  some  Great  Northern  coal  trucks.  Swainson  signaled 
to  the  driver  to  go  on  to  the  Northeastern  departure  line, 
and  he  did  so,  proceeding  along  the  line  until  he  had  passed 
some  points;  but  he  then  reversed  his  engine  and  backed 
out  again,  having  a  van  before  the  engine  which  obscured 
his  view  of  the  line,  and,  according  to  evidence  given  on  the 
plaintiff's  behalf,  without  sounding  his  whistle,  although  it 
was  unsafe,  as  also  stated  in  that  evidence,  to  back  out  with 
a  van  before  the  engine.  Swainson,  when  the  engine  and 
van  were  thus  backed  out,  was  looking  in  the  other  direction, 
watching  a  train  which  was  coming  from  the  south,  and, 
failing  to  observe  them,  he  was  knocked  down  by  a  step  of 
the  van  and  killed." 


14  MASTERS    LIABILITY    TO    SERVANT. 

Upon  'd\2se  facts  the  Lazu  Times  justly  remarks:  "But 
were  there,  in  reality — we  may  be  pardoned  for  asking — 
such  circumstances  in  this  case  as  to  make  the  deceased  man 
a  servant  of  the  Northeastern  as  well  as  of  the  Great 
Northern  Railway  Company?  He  was  engaged  and  paid  by 
the  Great  Northern  Company,  and  he  wore  that  company's 
uniform.  In  those  respects,  therefore,  he  had  not  anything 
to  do  with  the  Northeastern  Company.  Nor  was  he  even 
informed,  at  the  time  of  his  being  engaged,  that  he  was  to  be 
a  joint  servant  of  the  two  companies.  These  facts  were  not 
disputed,  be  it  remembered,  on  the  defendants'  behalf;  and, 
this  being  so,  what  is  the  answer  which  thus  far  immediately 
presents  itself  to  the  mind  if  the  question  'to  whom  did  he 
undertake  '  be  applied  to  the  case  ?  And  it  is  a  question 
which — as  the  learned  judges  themselves  pointed  out  in  their 
judgment — inevitably  arises  when  it  is  averred  that  a  particular 
person  was  a  servant,  and  that  he  had  undertaken  the  risk 
of  the  negligent  acts  of  his  fellow-servants.  Surely  that 
answer  is  not  that  he  had  '  undertaken '  to  the  North- 
eastern Company !  And  if  that  be  so,  then  where  else  in 
the  circumstances  of  the  case  is  the  'undertaking'  or  the 
contract  of  service  with  that  company  to  be  found  ?  It  can 
hardly  be  said  that  it  is  to  be  found  in  the  fact  that,  as  to 
points  and  signals,  it  was  his  duty  to  attend  to  the  traffic  of 
the  Northeastern  as  well  as  to  the  traffic  of  the  Great 
Northern  Company,  for  that  duty  arose  from  arrangement 
made  solely  by  the  latter  company,  who  were  his  actual 
employers  with  the  former  company,  and  which  would  seem 
to  have  been,  at  the  most,  a  letting  out  of  his  services  on  hire 
for  their  own  advantage.  As  little  would  it  seem  to  arise 
from  the  signing  of  the  pay-sheet  headed  with  the  words 
already  mentioned,  for  the  name  of  the  Great  Northern 
Company  alone  appeared  there,  and  it  w^as  the  station,  and 
not  the  staff  of  servants  employed  at  it,  which  was  spoken  of 
on  that  bill  as  joint." 

The  judges  hearing  the  case,  Barons  Pollock  and  Hud- 
dleston,  held  that,  w-hile  the  evidence  did  not  support  the 
hypothesis    of  a    contract    between    the   deceased  and    the 


MASTERS    LIABILITY    TO    SERVANT.  1 5 

Northeastern  Railway  Company,  there  was  "  a  common 
employment  in  a  common  service,"  in  which  the  deceased 
was  engaged  with  the  person  by  whose  negligence  he  was 
injured,' 

^  The  following  extract  from  the  judgment  of  Pollock,  B.,  deserves  study : 
*'  Up  to  a  certain  point  this  is  clear  that,  wherever  the  person  injured,  and  he 
by  whose  negligent  act  the  injury  is  occasioned,  are  engaged  in  a  common 
employment  in  the  service  of  the  same  master,  no  action  will  lie  against  the 
master  if  he  be  innocent  of  any  personal  negligence.  The  negligence  of  a 
fellow-servant  is  taken  to  be  one  of  the  risks  which  a  servant,  as  between 
himself  and  his  master,  undertakes  when  he  enters  into  the  service.  This  is 
thoroughly  established  by  the  cases  of  Priestley  v.  Fowler,  3  M.  &  W.,  17  L. 
J.  (n.  s.)42,  Ex.;  Hutchinson  v.  The  York,  Newcastle  &  Bei-wick  Ry.  Co.,  5 
Ex.  343,  19  L.  J.  296,  Ex.,  and  other  cases.  In  Wiggett  v.  Fox,  11  Ex.  832, 
25  L.  J.  185,  Ex.,  the  rule  was  held  to  apply  whei-e  Wiggett,  the  person 
injured,  was  the  servant  of  Moss,  a  piece-worker  or  sub-contractor,  and  he 
by  whose  negligence  the  injury  was  occasioned  was  in  the  immediate  employ 
of  the  defendants  ;  but  in  that  case  it  is  to  be  observed  that,  although  Wiggett 
was  engaged  by  the  piece-worker,  it  was  a  part  of  the  arrangement  between 
the  latter  and  the  defendant  that  the  workmen  should  be  paid  their  weekly 
wages  by  the  defendant;  so  that,  as  was  said  by  Martin,  B.,  in  the  course  of 
the  argument,  Moss  was  not  a  sub-contractor  in  the  sense  that  an  action 
would  lie  against  him  by  a  stranger.  In  Wilson  v.  Merry,  in  the  House  of 
Lords,  19  L.  T.  Rep.  (n.  s.)  30,  L.  Rep.  i  Scotch  App.  326,  it  was  held  that 
the  master  was»protected,  although  the  fellow-servant  whose  negligence 
caused  the  injury  was  a  manager.  So  in  Morgan  v.  The  Vale  of  Neath  Rail- 
way Company,  18  L.  T.  Rep.  (n.  s.)  564,  5  B.  &  S.  570,  736,  L.  Rep.  i 
Q.  B.  149;  and  Lavell  v.  Howell,  34  L.  T.  Rep.  (n.  s.)  183,  45  L.  J.  387,  C. 
P.,  L.  Rep.  I  C  P.  D.  161,  where  the  work  in  which  the  two  servants  were 
engaged  was  wholly  dissimilar.  In  all  these  cases  there  was,  not  only  a  com- 
mon employment  (that  is,  an  employment  with  a  common  object),  but  also 
common  service  (that  is,  service  under  one  master).  Dicta  are,  no  doubt, 
however,  to  be  found  in  some  of  the  cases  which  tend  to  suggest  that  the 
principle  ought  to  be  applied  to  cases  in  which  the  element  of  common  ser- 
vice may  be  wanting.  There  is  great  ditHculty  in  so  holding,  because,  when 
it  is  said  that  the  servant  undertakes  the  risk  of  the  negligent  acts  of  his  fel- 
low-servant, the  question  arises,  'Undertakes  to  whom?'  and  the  proposition 
must,  we  think,  be  limited  by  confining  the  undertaking  to  the  master  of  the 
servant  who  is  supposed  to  give  it.  It  cannot,  we  think,  reasonably  be 
extended  to  strangers,  or  those  who,  though  having  some  interest  in  a  joint 
operation,  are  not,  in  some  sort,  the  masters  of  the  person  injured.  It  is  not, 
however,  necessary  in  the  view  we  take  of  this  case  to  pursue  this  further. 
Before  dismissing  the  cases,  however,  it  is  right  to  notice  two— namely,  Voss 
V.  The  Lancashire  &  Yorkshire  Railway  Company,  2  H.  &  N.  728,  27  L.  J. 
249,  Ex.;  and  Warburton  v.  The  Great  Western  Railway  Company,  15  L.  T. 


i6  master's  liability  to  servant. 

In  two  recent  American  cases  we  find  the  non-liability  of 
the  employer  for  an  employe's  negligence  maintained  on 
facts  which  give  no  just  support  to  the  hypothesis  of  a  con- 
tract between  the  employer  and  the  injured  operative. 

Rep.  (n.  s.)  361,  36  L.  J.  9  Ex.,  L.  Rep.  2  Ex.  30 — which  were  cited  lay  Mr. 
Waddy,  in  favor  of  the  plaintiffs,  as  governing  the  present  case.  In  the 
former  of  these  cases  a  man  named  Voss,  a  blacksmith  in  the  employment 
of  the  East  Lancashire  Railway  Company,  was  working  at  one  of  their 
engines,  which  was  on  their  siding  at  the  Liverpool  station,  when  an  engine 
belonging  to  the  defendants,  and  driven  by  one  of  their  drivers,  pushed  some 
wagons  into  the  siding,  and  so  Voss  was  killed.  The  station  where  the 
deceased  man  was  working  at  the  time  of  the  accident  was  in  the  joint 
occupation  of  the  defendants  and  the  East  Lancashire  Railway  Company  ; 
but  the  deceased  was  the  servant  of  the  latter  company,  and  not  of  the 
defendants,  and,  upon  this  ground,  the  court  held  the  defendants  were  liable. 
In  Warburton  v.  The  Great  Western  Railway  Company  {ubi  sup.),  the  facts, 
as  stated  in  the  judgment  of  the  court,  were  as  follows :  The  plaintiff  was  a 
servant  in  the  employ  of  the  London  &  Northwestern  Railway  Company,  and 
was  at  work  in  the  Victoria  station  at  Manchester,  when  an  engine-driver  in 
the  employ  of  the  defendants,  the  Great  Western  Railway  Company,  having 
entered  the  station,  shunted  a  train  belonging  to  the  defendants  from  one  part 
of  the  station  to  another,  and,  in  so  doing,  was  guilty  of  the  negligence  com- 
plained of.  The  station  was  the  property  of  the  London  &  Northwestern 
Railway  CompaYiy,  and  was  used  in  common  by  the  plaintiff's  employers  and 
the  defendants,  and  other  companies.  By  an  arrangement  between  these 
companies  the  defendants'  engine-driver  ought  to  have  awaited  a  signal  from 
an  officer  of  the  London  &  Northwestern  Railway  Company  before  he  shunted 
the  train  into  the  siding;  but,  without  doing  so,  and  without  any  signal  at  all, 
he  shunted  the  train,  and  negligently  caused  the  injury  in  question  to  the 
plaintiff.  Upon  these  facts  the  court  say  :  'We  are  of  opinion  that,  inas- 
much as  the  injury  sustained  by  the  plaintiff  was  occasioned  by  the  servant 
of  the  defendants,  not  in  the  course  of  any  common  employment,  or  opera- 
tion under  the  same  master,  but  by  negligence  in  the  discharge  of  his  ordinary 
duty  to  the  defendants  alone,  this  case  is  distinguishable  from  all  which  have 
been  decided  in  relation  to  the  above  doctrine  of  exemption,  and  that  there- 
fore this  action  is  maintainable.'  Both  these  cases  were,  no  doubt,  properly 
decided  upon  the  ground  that  in  each  of  them  it  could  be  correctly  affirmed 
that  the  servant  who  did  the  injury  was  in  the  employ  of  the  defendants,  and 
doing  their  work,  and  not  what  was  common  to  that  in  which  the  plaintiff  was 
employed.  In  the  present  case  the  circumstances  material  to  the  legal  posi- 
tion of  the  parties,  and  the  rights  flowing  therefrom,  are  very  different.  The 
deceased  man,  Swainson,  though  engaged  by  the  Great  Northern  Company, 
and  wearing  their  uniform,  was  one  of  a  joint  staff,  and  for  four  years  had 
received  his  weekly  wages  as  such,  and  he  was,  therefore,  practically  in  the 
service   of  two  companies,   who,    quoad  his   service  and  employment,  were 


master's  liability  to  servant.  17 

In  Mills  V.  Railroad  Company,  2  McArthur,  314,  the 
plaintiff  was  employed  by  the  Washington  &  Alexandria 
Railroad  Company  to  carry  the  flag  before  the  trains  running 
on  that  road  within  certain  limits.  The  Orange  Railroad 
Company  had  the  right  of  way,  by  contract,  over  the  track 
of  the  Washington  &  Alexandria  road  ;  the  plaintiff's  duty 
being  to  flag  all  the  trains  coming  over  the  latter's  road. 
He  was  employed,  when  the  accident  occurred,  in  flagging  a 
train  of  the  Orange  road,  by  which  he  was  run  down.  It 
was  argued  that  he  did  not  keep  a  proper  look-out,  and 
hence  was  precluded  from  recovery.  The  court,  however, 
in  ruling  that  he  had  no  case,  rested  on  the  assumption  that 
he  was  a  servant  of  the  Orange  road.  But  what  kind  of  ser- 
vice was  this?  He  made  no  contract  with  the  Orange  Com- 
pany. He  could  not  have  sued  that  company  for  wages,  nor 
would  that  company  have  been  responsible  for  his  negli- 
gence. The  decision  was  right,  supposing  the  plaintiff  was 
hurt  because  he  kept  no  look-out,  but  the  reason  was  wrong. 
See,  also,  Rawch  v.  Lloyd,  31  Pa.  St.  358. 

In  Johnson  v.  Boston,  118  Mass.  114,  the  evidence  showed 
that  the  defendant,  the  city  of  Boston,  was  engaged,  at  the 
time  of  the  accident  which  was  the  subject  of  suit,  in  build- 
ing a  sewer  in  Warren  street.  The  work  of  excavating  and 
blasting  was  undertaken  by  a  person  named  Tinker,  who 
worked  through  a  gang  of  men  of  which  the  plaintiff  was 
one.     The  plaintiff  was  injured,  so  it  was  claimed,  through 

partners.  But  further  than  this,  as  was  said  by  Lord  Colonsay,  in  Wilson  v. 
Merry,  ubi  sup. :  '  We  must  look  to  the  functions  the  party  discharges,  and 
his  position  in  the  organism  of  the  force  employed,  and  of  which  he  forms  a 
constituent  part.'  Referring,  then,  to  the  duties  of  Swainson,  and  the  very 
acts  on  which  he  was  engaged  at  the  time  of  his  death,  the  evidence  shows 
that  they  were  not  performed  by  him  as  servant  of,  or  for  the  benefit  of,  one 
•company  only,  but  were  essentially  necessary  for  the  common  business  of 
both — namely,  the  interchange  of  the  traffic  between  the  two  stations.  The 
case  therefore  falls  within,  and  is  governed  by,  the  principle  that  where 
there  is  common  employment  in  common  service  the  master  is  not  liable, 
and  our  decision  must  be  for  the  defendants,  for  whom  judgment  must  be 
■entered. 

"  Huddleston,  B.,  concurred. 

"Judgment  for  the  defendants." 


1 8  MASTERS    LIABILITY    TO    SERVANT. 

the  negligence  of  the  foreman  of  the  sewer  department  of 
the  city.  Was  the  plaintiff  a  fellow-servant  with  the  fore- 
man ?  Could  the  plaintiff  be  supposed  to  have  made  a  con- 
tract of  service  with  the  defendant  ?  Now,  we  may  w^ell 
understand  how  the  plaintiff  and  the  foreman  could  be 
regarded  co-adventurers,  and  how  the  one  could  be  pre- 
cluded from  recovering  for  damage  sustained  through  the 
other's  negligence.  But  it  is  difficult  to  see  how  the  plaintiff 
could  have  been  held  to  have  made  a  contract  of  service 
with  defendant.  There  was  a  contract  of  service,  but  it  was 
with  Tinker  alone.  Tinker  fixed  the  plaintiff's  wages,  and 
determined  the  place  of  the  plaintiff's  work.  In  neither  of 
the  cases  above  specified  is  the  person  who  sets  up  the  con- 
tract the  person  by  whom  the  contract  was  made. 

Passing,  however,  from  this  examination  of  the  recent 
authorities,  we  proceed  to  notice  that  a  third  essential  to  a 
contract  of  service  is  that  the  servant  should  be  a  competent 
contracting  party,  and  should  actually  enter  into  the  con- 
tract. But  are  servants,  against  whom  this  privilege  of  the 
master  is  set  up,  always  competent  to  contract?  Might  not 
a  child  employed  in  a  factory,  when  injured  by  a  fellow- 
workman,  be  barred  by  the  rule  before  us  ?  Has  it  not 
repeatedly  been  held  that  a  child  cannot  recover  from  a 
master  for  negligences  in  the  latter's  apparatus  or  service  ? 
Is  there  a  single  case,  in  which  this  result  is  reached,  in  which 
the  negligence  of  fellow  servants  is  not  more  or  less  involved  ? 
A  volunteer,  also,  who  lends  a  hand  to  give  a  single  turn  to 
a  single  windlass,  finds  himself  as  much  barred,  when  he 
sues  the  master  by  this  limitation,  as  if  he  had  been  a 
trusted  servant  for  years.  To  a  contract  by  a  servant,  how- 
ever, it  is  necessary  that  there  should  be  a  servant  compe- 
tent to  contract.  But  the  exception  before  us  is  sustained 
in  cases  in  which  the  operative  is  not  a  servant,  and  in  cases 
in  which,  if  a  servant,  he  is  not  capax  negotii. 

A  fourth  essential  to  a  contract  is  that  it  should  be  lawful. 
But,  by  the  consent  of  the  great  body  of  our  American 
courts,  contracts  to  relieve  a  party  from  the  consequences  of 
his  negligence  are  unlawful,  as  against  the  policy  of  the  law. 


MASTER  S    LIABILITY    TO    SERVANT.  I9 

Therefore,  even  should  we  assume  a  contract  of  this  class  to 
be  entered  into  between  an  employer  and  an  employe,  we 
must  hold  such  a  contract  to  be  invalid. 

It  is  clear,  therefore,  that  in  sustaining  this  exception  we 
must  cast  aside  the  ground  of  an  implied  contract  between 
the  operative  and  the  employer.  We  may  proceed,  there- 
fore, to  the  second  ground — namely,  that  the  operative  ought 
not  to  recover  because  he  has  an  opportunity  of  watching 
and  reporting  on  his  associates — and  enquire  how  far  this 
ground  sustains  the  limitation  before  us. 

Does  the  operative  in  one  case  out  of  a  hundred  of  those 
that  come  before  the  courts  have  the  opportunity  to  inspect 
his  associates?  Is  he  not,  by  the  laws  of  all  difficult  and 
important  industries,  so  tied  to  his  post  that  he  has  no  time  for 
such  observations?  Even  supposing  that  he  has  time,  has  he 
the  means  or  capacity?  He  is  in  another  part  of  the  same 
building;  or,  he  is  in  a  different  building;  or,  while  he  is 
driving  a  locomotive,  his  fellow-operative,  by  whose  negli- 
gence he  is  to  be  injured,  is  turning  a  distant  switch  i^the 
wrong  way ;  or,  while  he  is  waiting  to  couple,  his  fellow- 
operative  neglects  to  put  on  the  brakes ;  or,  while  he  is  busy 
cleaning  the  deck  of  a  great  steamer,  his  fellow-operative  is 
so  negligently  managing  the  boiler  that  it  bursts.  Even  if 
my  fellow-servant  stands  by  my  side,  I  may  be  incapable, 
from  my  ignorance  of  his  specialty,  of  criticising  him  ;  or,  his 
superiority  in  experience  may  be  such  as  to  make  me  dis- 
trust my  capacity  for  criticism.  It  is  absurd  to  speak  of  the 
sufferer,  in  such  cases  as  these,  inspecting  and  reporting  on 
the  offender's  misconduct.  And  it  is  still  more  absurd  to 
make  such  a  supposition  when  the  offender  is  the  sufferer's 
superior,  or  when  the  subaltern  knows  that  if  he  reports  the 
negligences  of  his  superiors  he  will  soon  be  without  superiors 
to  report.  We  have,  therefore,  to  reject  the  idea  that  the 
exemption  before  us  rests  upon  the  fact  that  the  sufferer,  in 
cases  of  this  class,  had  the  opportunity,  before  the  injury,  of 
observing  and  reporting  on  the  conduct  of  the  person  by 
whom  he  is  to  be  injured. 

On  what,  then,  are  we  to  sustain  this  conclusion  ?     The 


20  MASTER  S    LIABILITY    TO    SERVANT. 

answer  is,  on  the  general  principle  that  a  party  cannot 
recover  for  injuries  he  incurs  in  risks,  themselves  legitimate, 
to  which  he  intelligently  submits  himself.  This  principle 
has  nothing  distinctively  to  do  with  the  relations  of  master 
and  servant.  It  is  common  to  all  suits  for  negligence,  based 
on  duty,  as  distinguished  from  contract.  For  instance,  a 
plaintiff  cannot  recover  for  damages  incurred  by  him — 

(i)  When,  on  crossing  a  railway,  he  strikes  against  a  car 
negligently  left  on  the  road — he  being  previously  advised  of 
the  position  of  the  car;   or, 

(2)  When  he  stumbles  on  an  obstacle  left  negligently  on 
a  highway,  he  knowing  of  such  obstacle  previously ;  or, 

(3)  When,  after  being  advised  of  the  danger  of  attempt- 
ing to  rescue  property  at  a  fire,  he  attempts  the  rescue. 

(4)  So  we  may  assume  the  case  of  a  farmer  who  puts  a 
tank  of  inflammable  oil  close  to  the  fence  of  a  railway  ovea 
which  a  hundred  locomotives  pass  daily;  the  oil  takes  fire, 
and  the  farmer's  barn  is  consumed.  He  cannot  recover  from 
the  railroad  company  for  negligently  igniting  the  oil  by  its  cin- 
ders. He  knew,  or  ought  to  have  known,  that,  in  the  long 
run,  cinders  would  be  negligently  dropped ;  and,  if  he  took 
the  risk  of  putting  inflammable  substances  in  a  place  where 
they  would  be  ignited  by  the  cinders,  he  must  bear  the  con- 
sequences. 

(5)  -^  green-house,  to  assume  another  case,  is  built  in  the 
close  vicinity  of  a  barracks  where  there  is  constant  artillery 
practice,  of  which  the  owner  of  the  green-house  knew  when 
he  selected  its  site.  Through  negligence  occur,  from  time  to 
time,  explosions  unusually  severe.  Through  the  concussion 
of  one  of  these  explosions  the  glass  of  the  green- house  was 
broken.  The  owner  cannot  recover,  as  he  intelligently 
exposed  himself  to  the  risk. 

(6)  A  party  of  seamen  undertake  a  whaling  voyage  on 
shares,  and  appoint  their  own  officers.  During  the  voyage 
A  is  injured  by  B's  negligence.  But  A  cannot  recover  from 
C  damages  for  injuries  which  were  exclusively  attributable 
to  B,  even  though  C  were  master  of  the  ship. 

Does    it    make   any    difference  whether  or  no   the    party 


master's  liability  to  servant.  21 

injured,  in  either  of  the  cases  mentioned  above,  is  a  servant 
suing  a  master  ?  Or,  to  take  the  converse,  is  there  any  case 
in  which  the  servant  is  prechided  from  recovering  from  the 
master,  in  which  a  person  not  a  servant,  but  a  mere  stranger, 
would  not  be  prechided,  under  similar  circumstances,  from 
recovery?  If  so,  we  may  throw  aside  all  that  belongs  dis- 
tinctively to  the  law  of  master  and  servant,  and  hold  to  the 
following  propositions  as  sufficient  for  the  settlement,  not 
merely  of  the  present  line  of  questions,  but  of  all  cases  in 
which  one  person  is  injured  by  dangerous  agencies  belong- 
ing to  others  : 

1.  A  person  having  control  of  dangerous  agencies  must 
so  restrain  them  that  they  will  not  injure  other  persons  ;  and, 
to  prevent  such  injury,  he  must  use  the  diligence  common  to 
good  business  men  in  the  specialty.  This  imposes  on  him 
the  following  duties  : 

2.  He  must  notify  persons  visiting  the  place  where  such 
agencies  are  operating  of  their  peculiar  danger;  and,  if  such 
persons  are  children,  having  business  with  him,  whom  he  per- 
mits to  visit  the  place,  he  must  provide  guards  in  proportion 
to  their  peculiar  risks. 

3.  Against  mere  trespassers  whose  presence  he  has  no 
reason  to  expect,  and  for  whose  protection  he  is  under  no  duty 
to  provide,  he  need  take  no  precautions  on  his  own  premises 
beyond  those  which  forbid  a  person  owning  property  which 
may  be  visited  by  others  from  putting  on  it,  not  for  any 
business  purpose,  but  for  punitive  purposes  of  his  own, 
man-traps,  spring-guns,  or  other  instruments  likely  to  be 
fatal  to  life. 

To  operatives  injured  by  defective  machinery,  or  by  the 
negligence  of  other  operatives,  in  a  great  industrial  under- 
taking, these  rules  are  eminently  applicable.  If  I  intelli- 
gently enter  into  a  business  which  has  certain  risks,  I  assume 
these  risks,  and  cannot  recover  from  another  person  damages 
arising  from  them.  So  far  as  concerns  defects  in  machinery, 
this  principle  holds  good  in  all  cases  in  which  these  defects 
could  not  have  been  avoided  by  the  party  sued,  except  by 
the  exercise  of  a  diligence  beyond  that  used  among  good 


22  MASTER  S    LIABILITY    TO    SERVANT. 

business  men  under  the  circumstances.     The  difficulty  arises 
when  the  injury  arises  from  the  negHgence  of  one  who  is  a 
co-operative  with  the  party  injured.     But  if  we  cast  aside,  as 
we  have  been  compelled  to  do  in  the   preceding  argument, 
the    idea   that  there    is    in   such   cases  a   contract  between 
employer  and  employe  to  the  effect  that  the  latter  is  to  bear 
certain  risks,   then    we    may    regard  the    employer  and  his 
various  employes  as  co-adventurers  in  carrying  on  a  com- 
mon enterprise.     If  so,  supposing  A,  B,  C,  and  D  to  consti- 
tute these  common  adventurers  ;  A,  the  employer,  is  not  liable 
to  D  for  the  negligence  of  B  and  C,  while  he  is  liable  for  his 
own  negligence,  or  for  the  negligence  of  any  person  who  acts 
as  his  specific  representative.     Did  we  not  hold  to  this  dis- 
tinction, there  are  few  cases  in  which  a   servant  injured  by 
defects  in   machinery  could  be   precluded   from  recovering 
from   the  master.     For  it  would  be  absurd  to  say  that  the 
master  shall  not  be  liable  for  defects  in  his  machinery  not  im- 
putable to  his  own  negligence,  but  shall  be  liable,  on  the  prin- 
ciple o{  respondeat  superior,  for  his  servant's  negligences  to  a 
fellow-servant.     For  how  can  his  machinery  work  without 
being  started ;  and,  if  it  is  not  started  by  casus,  or  by  third 
parties,  or  by  himself,  or  by  the  injured  party,  must   it  not 
have   been  started   by   the   injured   party's   fellow-servants? 
But,  if  the  master  is  not  liable  to  the  injured  servant   for  the 
defects  of  machinery  when  negligently  started  by  the  suf- 
ferer's fellow-servants,  then  the  master's  non-liability  extends 
to  the  negligence  of  such  fellow-servants.      We  are  there- 
fore  reduced  to  the  following  dilemma :    either  the  master 
must  be  held  liable  to  an  injured   servant  in  all  cases  not 
imputable  to  casus  or  the  intermeddling  of  strangers,  which 
is  absurd ;  or  the  master  must  be   relieved  from  liability  in 
cases   where  the  sufferer  is  hurt  by  machinery   negligently 
worked  by  fellow-servants,  in  whose  appointment,  manage- 
ment,   and    retention    no    negligence    is    imputable    to    the 
master.     The  latter  alternative  we  must  accept ;  and  it  brings 
us  back  to  the  conclusion  that  the  master's  non-liability  in 
such  cases  rests,  not  on  contract,  nor   on  the  assumed  fact 


master's  liability  to  servant.  23 

that  the  suffering  servant  had  the  prior  opportunity  of  watch- 
ing and  correcting  the  offending  servant,  but  on  the  principle 
that  a  party  who  voluntarily  and  intelligently  exposes  himself 
to  certain  risks,  such  risks  being  the  incidents  to  a  lawful 
business,  cannot  recover  if  he  is  hurt  by  the  exposure. 
Quod  quis  ex  culpa  sua  damnum  sentil,  non  intclligitur 
■damnum  sentire.     L.  203,  de  R.  J.  50,  17. 

If  we  adopt  this  conclusion,  we  certainly  relieve  ourselves 
from  the  cardinal  objection  to  the  law  as  it  now  stands.  For, 
if  I  am  only  precluded  from  recovering  from  my  employer 
in  those  cases  of  injuries  from  fellow-employes  which  are 
among  the  incidents  of  joint  service,  then  I  am  not  precluded 
from  recovering  from  him  in  cases  where  the  service  was  not 
joint.  If  I  am  injured  by  a  person  performing  any  of  the 
master's  duties,  therefore  I  may,  adopting  the  reasoning  here- 
tofore given,  recover  damages  from  the  master  himself.  If  I 
am  permitted  so  to  recover,  then  we  will  relieve  the  law  as  it 
■exists  in  England,  and  in  several  of  the  United  States,  from 
a  provision  which  gives  the  great  capitalist  undue  advantages 
over  the  small.  On  this  point  Mr.  Lowe,  in  the  report  above 
given,  makes  the  following  telling  remarks  : 

"  By  declaring  that  managers  are  fellow-servants  with  the 
laboring  men  in  a  mine,  a  factory,  or  a  workshop,  the  law 
has  offered  a  premium  on  the  delegation  of  all  power  from 
the  master  to  his  subordinates,  since  he  is  relieved  by  such  a 
•delegation  from  the  liability  which  he  had  while  he  managed 
his  own  affairs.  But  to  whom  is  that  liability  transferred  ? 
To  inferior  agents  who  are  liable,  but  whom,  by  reason  of 
their  position  in  life,  it  is  not  worth  while  to  sue.  Thus,  by 
a  change  effected  entirely  for  the  benefit  and  convenience  of 
the  owner,  the  workman  is  deprived  of  an  indemnity  which 
the  law  gives  him,  because  the  law  never  contemplated  the 
vast  industrial  undertakings  which  now  exist;  and  the  courts 
of  law,  by  an  imaginary  contract,  have  restricted  the  claim 
for  compensation  to  fellow-servants  who  are  unable  to  pay. 
This  seems  to  be  a  case  for  the  application  of  the  maxim, 
sic  utcre  tito  ut  alieiium  no7i  Iccdas;    if  the  master,  for  his  own 


24  MASTER  S    LIABILITY    TO    SERVANT. 

convenience,  withdraws  himself  from  the  management  of  his 
own  business,  the  workman  ought  not  to  suffer  by  the  loss  of 
a  defendant  whose  position  is  a  guarantee  that  he  is  able  to 
satisfy  their  just  demands,  and  by  the  substitution  of  one 
who  is  not,  any  more  than  the  creditors  of  the  master  ought 
to  be  deprived  of  their  remedy  against  him  because  the  debts 
were  incurred  by  his  agents." 

In  other  words,  if  I  am  employed  in  a  factory  whose  pro- 
prietor superintends  its  machinery,  then,  as  the  law  now 
stands,  he,  and  the  capital  he  represents,  is  liable  to  me  for 
the  defective  working  of  the  machinery  he  superintends,  if 
the  defect  be  traceable  to  his  negligence.  If,  on  the  other 
hand,  this  same  superintendent  is  but  the  foreman  of  others,, 
then,  negligent  as  he  may  have  been,  these  others,  who 
represent  the  capital  invested,  and  who  are,  therefore,  pecun- 
iarily responsible,  are  not  liable  to  me,  the  party  injuring 
me  being  assumed  to  be,  not  my  employer,  but  my  fellow- 
servant.  The  capitalist,  therefore,  when  superintending  his 
own  work,  is  liable ;  when  not  so  superintending,  is  not 
liable  for  the  negligence  of  employes.  The  small  capitalist 
who  works  in  his  own  factory  is  thus  under  a  burden,  from 
which  the  great  capitalist  who  operates  through  agents  is 
relieved.  The  decisions,  therefore,  discriminate  in  favor  of 
the  great  capitalist  as  against  the  small  capitalist,  and  they 
tend  to  give  to  wealth,  when  monopolizing  various  branches 
of  industry,  and  withdrawing  itself  from  any  practical 
acquaintance  with  its  working  of  any  particular  branch,, 
privileges  which  are  denied  to  the  proprietors  of  small  and 
distinct  enterprises  which  they  operate  themselves.  But  it 
is  not  for  the  good  of  the  community  that  this  discrimina- 
tion should  be  made.  The  wealth  of  the  state,  if  centred 
in  a  few  capitalists,  each  with  his  multitudes  of  subordinates,, 
is  productive  of  far  less  public  happiness,  comfort,  and  secu- 
rity than  it  would  be  if  divided  among  a  series  of  independ- 
ent men  of  business,  each  conducting  under  his  own  eyes 
the  specialty  with  which  he  is  most  familiar.  If  there  is  to 
be  any  discrimination  as  between  the  great  and  the  small 


master's  liability  to  servant.  25 

proprietor,  it  should  not  be  against  the  small  proprietor  who 
:superintends  his  own  work.^ 

The  conclusions  I  draw  are  as  follows : 

(i)  Employer  and  employes,  when  uniting  in  a  particu- 
lar work,  are  co-adventurers  in  such  work ;  and  no  one  of 
these  co-adventurers  can  recover,  if  there  be  no  concealment 
of  the  rates  or  personal  negligence,  from  another  co-adven- 
turer damages  for  injuries  which  were  incidental  to  the  work. 
For  such  injuries  the  employe  can  no  more  recover  from 
the  employer  than  can  the  employer  from  the  employe. 

(2)  Co-adventure,  however,  in  this  sense,  is  not  convertible 
Avith  co-service.  There  are  many  co-services,  under  a  com- 
mon master,  which  are  not  co-adventures.  A  clerk  making 
-entries  in  the  books  of  Adams'  Express  Company  in  Boston 
is  not  a  co-adventurer  with  a  driver  of  the  same  company  in 
New  Orleans,  The  co-adventure  must  consist  in  fellowship 
in  a  specific  line  of  work. 

(3)  Even  as  to  such  specific  line  of  work,  any  co-adven- 
turer may  make  himself  individually  bound  by  undertaking 
a  particular  duty.  Thus,  if  he  negligently  furnishes  defect- 
ive machinery,  he  is  personally  liable  for  the  injuries  thereby 
produced  to  one  of  his  co-adventurers.  And  this  is  not 
because  he  is  master.  For  such  a  breach  of  duty  the  ser- 
vant (if  the  master  be  personally  hurt  thereby)  is  as  much 
liable  to  the  master  as  is  the  master,  mutatis  mutandis,  to 
the  servant. 

(4)  One  co-adventurer  is  not  liable  to  a  second  for  the 
negligence  of  the  third,  although  the  first  be  the  employer 
of  the  third,  unless  the  third  be  at  the  time  acting  as  the 
master's  substitute  in  a  matter  the  master  agreed  personally 
to  undertake,  or  unless  the  master,  to  whom  was  committed 
the  power  of  appointment,  exercised  this  power  negligently. 

Francis  Wharton. 


^A  thoughtful  review  of  some  of  the  authorities  above  given  will  be  found 
in  the  July  number  of  the  Americati  Law  Review. 


LAW  LIBRARY 
UNIVERSITY  OF  CAliFORNU 

LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBKAKY  FACILITY 


AA    000  855  888    4 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


0 


M  ,  !      C     ^ 


^^  ^1 


,'bf^^ 


GCU^ 


ml 


^''   ^ 


